Amicus Curiae: Free Speech vs Hate Speech – Where Do We Draw the Line?

By Hannah Yang

In a recent open letter signed by various notable New Zealand figures, including Sir Bob Jones, Sir Geoffrey Palmer, Dr Don Brash, and Dame Tariana Turia, Professor Paul Moon from the Auckland University of Technology has warned against the “forceful silencing of dissenting and unpopular views” on university campuses. There is no right not to be offended, Professor Moon states, and the suppression of free speech is driven by fear an intolerance, rather than stopping it.

This move comes after a mounting awareness on issues relating to racial abuse and anti-immigrant sentiment, particularly in the wake of the election of Donald Trump. In January, Race Relations Commissioner Dame Susan Devoy called for a review of hate speech legislation to cover the “harmful language” that takes place on the internet. In February, Police Commissioner Mike Bush raised the possibility of creating specific legislation targeting hate crime, after a racial attack on a Muslim New Zealander. In early March, the Auckland University European Students’ Association, a new club which employed white supremacist motifs and a Nazi slogan, disbanded, citing safety concerns.

While the government has rejected the possibility of creating a new offence, with Prime Minister Bill English saying that New Zealand has a “tolerant public discussion”, and Police Minister Paula Bennett warning against generalising from the behaviour of “a few individuals”, the question remains as to whether there is statistical evidence of a rise in hate crimes (according to Mike Bush, hate crimes are not specifically recorded as such), whether a new offence is necessary, and what the appropriate place is to draw the line between protecting racial minorities and curtailing freedom of speech.

In Australia, attempts to reform legislation which protected against racial insults were met with strong opposition and ultimately proved unsuccessful. The current Australian law under section 18C of the Racial Discrimination Act 1975 makes it unlawful in a public place to behave in a way that is likely to offend, insult, humiliate, or intimidate another person, based on the race, colour, or ethnic or national origin of the person. The proposed changes would have replaced the words “offend”, “insult”, and “humiliate” with the one word, “harass”.

In New Zealand, race-based attacks are covered under various different provisions that provide different remedies.

Section 63 of the Human Rights Act 1993 protects against racially discriminatory behaviour. Under this section, it is unlawful to use language, visual material, or behaviour which expresses hostility against, or brings into contempt or ridicule a person, for reasons of race, colour or ethnicity, provided that the expression is also hurtful or offensive to that person and it is of such significance as to cause detrimental effect.

Section 131 of the Act protects against racially abusive language by making it an offence to use or publish words that are threatening, abusive, or insulting, provided that they are likely to excite hostility against or bring into contempt people based on their race, and that there was intention to cause such excitement.

There are, however, limitations (not in a pejorative sense) to these provisions. There is a difference between conduct that is “unlawful” and conduct that is an “offence”. An offence is only created where an Act attaches a punishment to the conduct, allowing police to bring a criminal prosecution. This is not the case with s 63, which only provides that such conduct is “unlawful”. People may instead lay a complaint with the Human Rights Commission, and bring civil proceedings before the Human Rights Tribunal. While section 131 does create a punishable offence, prosecutions under that section may only be brought with the permission of the Attorney-General.

There are, however, wider offences that may cover racial abuse in the Summary Offences Act 1981. Section 3 makes it an offence to behave, or to incite someone to behave in an offensive, threatening, or insulting manner, which is likely to cause violence against people. Section 4 makes it an offence to behave in an offensive or disorderly manner in a public place, or to say anything intended to threaten, alarm, insult, or offend another person. The drawback to these provisions are that they do not specifically target race-related incidences.

It is inarguable, therefore, that there are laws already in place under which racial attacks can be covered. The question is whether there is a need to create a separate, specific offence for hate crimes. Doing so would show greater moral condemnation, send a stronger message as to the seriousness of such behaviour, and ideally increase the law’s preventative effect. On the other hand, it may also produce a chilling effect whereby discussion around sensitive issues are stifled out of fear of prosecution. A perfect balance between the two is difficult to strike. While the answer to whether the need for the former outweighs worries of the latter will vary according to judgement, it should ultimately be informed by empirical evidence, and perhaps a collection of data would be a sensible place to start.

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